Electronic Filing: Beyond the Basics

by David L. Masters

As court systems move to permit electronic filing ("e-filing"), some lawyers see themselves at the top of a slippery slope, with mandatory e-filing at the bottom. Others see e-filing as an opportunity to provide courts and clients with dynamic documents that facilitate the presentation and communication of complex fact patterns and legal arguments. The move to e-filing, while presently in its infancy, may unfold as a paradigm shift equivalent to court rules that required all filings to be typewritten or printed.

This article describes how to go beyond merely e-filing documents with the court by creating complex digital or electronic documents that use document linking⁽¹⁾ to aid the judge’s understanding of a case. Immediate and convenient access to documents referred to in the brief assists the court in weighing the arguments presented. Many court-sanctioned e-filing systems have adopted the Adobe™ Portable Document Format ("PDF") for their file systems, including Colorado. Accordingly, the process detailed here relies on Adobe Acrobat™ for assembling the electronic brief.⁽²⁾ Acrobat™ also provides a means to convert paper documents to electronic copies that can be attached or linked to the brief. This article also illustrates the process of creating an electronic document by looking at the electronic creation of a brief. These concepts can be applied to other kinds of pleadings and to transactional documents as well.

Almost all law firms today use computers and word processing applications to generate briefs for filing with the court. As they exist on the computer, these briefs are electronic documents. The process described here begins at the point when the brief has been completed and would typically be printed on paper and signed. This article intends to help those attorneys who feel they are on the slippery slope become more comfortable with e-filing and to accept it as a useful litigation tool. Attorneys who already feel comfortable with e-filing can use this information to e-file more effectively.

Considerations Prior to "Printing" to PDF

Before "printing" (converting) the final word processing file to PDF, print it on paper. The responsible lawyer should review the paper version and highlight or mark all references that will be linked to source materials (for example, cases, statutes, transcripts, and the record on appeal). If a lawyer does the highlighting or marking, the task of creating the links can be delegated to a staff person, as discussed below.

Next, consider whether the links should appear in a color other than black. If so, take the time at this point in the process to select the text for each reference that will be linked and change the color of the font (for example, to dark blue). Links that appear in different colored text tell the reader to "click here." This process can be expedited by either putting a font color button on the word processor tool bar or by creating a macro⁽³⁾ that changes the color of selected text. A staff person, working from the printed version containing the highlighted or marked references, can then change the color of the text for the link references in the electronic document.

The responsible lawyer should review the brief with highlighter in hand, marking each citation that will be linked to source material. Depending on the skill and training of the staff person who will create the links, the lawyer should consider highlighting the exact words or characters that will be linked. This point might seem hyper-technical when thinking in terms of references to the record, such as R. at 119; the characters to be linked appear obvious. The point applies more to a citation such as: Whinnery v. Thompson, 868 P.2d 1095 (Colo.App. 1993) reversed , 895 P.2d 537 (Colo. 1995). How much or what portions of this citation will constitute the link? Based on this example, the best practice may be to use the Reporter-Page number as the link; this would result in separate links to both the Court of Appeals and the Supreme Court decisions.

Depending on factors such as the complexity of the brief and the word processing application used to create the original file, a choice might be made between using PDFWriter and Acrobat Distiller, both of which are included in and installed as printers when Adobe Acrobat™ is installed. PDFWriter works quickly and produces satisfactory results with most document files. Distiller takes more time but produces a PDF document with better font rendering.⁽⁴⁾ Moreover, Distiller might be a better choice if the document to be converted already has numerous bookmarks⁽⁵⁾ or divisions, because it will sometimes preserve internal document links and bookmarks that existed in the document before it was converted.

To print (convert) the file to PDF, use a print command within the word processing application that allows for printer selection (WordPerfect: File|Print or Ctrl-P or F5; Word: File|Print or Ctrl-P), choose either Acrobat PDFWriter or Acrobat Distiller, and print the file to PDF (depending on program settings, a dialog box may appear requiring input of the name of the PDF file being generated).

Creating and Organizing The Source Materials

Whenever possible, reference materials should be printed to PDF from an existing digital source. For example, case law retrieved from an online source or CD-ROM can be printed directly from the source to PDF. When saving these documents to PDF, use short logical names, such as a short form of their citation (941 P2d 1018). Avoid using periods, commas, other punctuation marks, and shifted numbers (!, @, #) when naming these files. Whenever possible, obtain digital copies of transcripts. Using a transcript management application such as eBinder, Summation, or LiveNote, print the transcript to PDF. As an alternative (neither simpler nor less expensive), open the transcript file in a word processing application, adjust the formatting as necessary,⁽⁶⁾ and print the file to PDF.

Some materials to be linked to the brief will not be available in digital format. For example, copies of contracts or other documents, answers to interrogatories, and affidavits may be available only in paper form. These documents should be scanned and, if good copies or originals contain mostly text, these images should be converted to text by an optical character recognition ("OCR") program. OCR allows these documents to become searchable, and links can be made to selected text (not just to the page where the text appears). Some OCR applications will convert PDF image files, retaining an exact "copy" of the original while creating a text file behind the image.

Scan documents at a resolution of 300 dots per inch ("dpi"). Some sources suggest a lower resolution, but 300 dpi works well and produces near photocopy quality when printed. To minimize the size of scanned image files, select scanner output settings for "black and white" (sometimes listed as "text" or "line drawing"). Select color or gray scale output settings only when necessary (these settings produce substantially larger files). If the documents to be scanned contain drawings, handwritten notes, or the like (content not susceptible to OCR), prepare a document summary (in Acrobat: File|Document Properties|Summary, keyboard shortcut Ctrl-D). The information included in the document summary will become part of any index generated and will provide a means to locate the document using Acrobat™ or Windows Explorer search functions.

Remove all work product annotations from the documents attached or linked as references. If transcripts or exhibits have been annotated with notes, those notes should be removed before including them in the appendix. Acrobat™ provides a function for removing all annotations—Tools|Comments|Delete All; there is no keyboard shortcut. The suggestion to remove all annotations does not necessarily apply to legal authorities where highlighting pertinent provisions may be appropriate. The same applies to transcripts; highlighting key testimony or rulings may be desirable.

Planning and Organization

When the motion or brief has been completed, time should be taken to decide whether the reference materials should be attached to the original document (by inserting pages) or maintained as separate document files. Short works lend themselves to inclusion of all reference materials; longer or more complex documents should use links to external documents. No precise guideline can be provided for when to do one or the other, and the courts have not promulgated rules addressing this issue. The detailed procedures described below address both all-in-one documents and documents with links to external reference materials.

The decision as to whether the source materials will exist as separate PDF files or will be added to the original document determines how the rest of the process is carried out. If the brief will have links to external documents ("Complex Brief"), as opposed to internal links ("Simple Brief"), the linking process must be performed on the local hard disk drive. In other words, the final PDF version of the brief must exist on the local "C" drive. This step must be observed—building the "eBrief" on a network drive will result in nonfunctional links when the final product is transferred to compact disk ("CD") or electronically filed with the court.

Organization of Simple Brief

The eBrief process described here may be done at any work station with Adobe Acrobat™ ; the brief file and source files may exist on a network drive and need not be copied to the local drive. However, the recording to CD-ROM may work better with all necessary copies on the "C" drive.

After the document has been converted to PDF, using Adobe Acrobat,™ open the document and bookmark the first page of the brief and the beginning of each section. In a lengthy brief, bookmarks will facilitate the linking process. To insert bookmarks, go to the desired location and press the Control (CTRL) key and the letter "B" at the same time (Ctrl-B). Alternatively, select Window from the menu bar and select Bookmarks (F5) to open the Bookmarks window; in the Bookmarks window, click on the Bookmark menu and select New Bookmark. After creating the bookmarks, go to the end of the document (Ctrl-Shift-Page Down or Ctrl-End or Last Page button on the toolbar), and insert the first item that will be linked. To insert this document, from the Acrobat™ menu, select Document|Insert Pages (Ctrl-Shift-I). Now find the file representing the pages to be inserted, highlight and click "Okay."

After Acrobat™ inserts these pages, the display remains at the former last page of the document. Advance one page (to the first page of the document that was just inserted), and insert a bookmark identifying the document (this bookmark will be useful during the linking process and may be deleted later, if appropriate). Once these pages have been inserted, go to the end of the document (now the last page of the most recently inserted file), and again select Document|Insert Pages (Ctrl-Shift-I). Insert the next document to be linked, advance one page, set a bookmark, go to the end of the document, and continue this process until all source materials have been incorporated into the pleading.

When adding documents to the original, group them by type (that is, put all the cases in first, then the transcripts, then the affidavits, then the other exhibits) and, within each grouping, insert the documents in the order of appearance in the pleading. How to create links to documents that have been "inserted" into the original document is discussed below.

Organization of Complex Brief

To begin the organizational process, create a folder for the project, such as "CD Smith Brief" (using this convention, rather than Smith Brief CD, places all the CD projects in the same area of the hard disk drive when viewed through Windows Explorer). Within the project folder, create subfolders for source materials; for example:

    Brief (C:\CD Smith Brief\Brief)

    Cases (C:\CD Smith Brief\Cases)

    Transcripts (C:\ CD Smith Brief\Transcripts)

    Record (C:\CD Smith Brief\Record)

If the authorities to be linked are numerous and of various types, consider creating a folder for "Authorities," with subfolders for the various types. Following this approach, the folder structure might be:

    Brief (C:\CD Smith Brief\Brief)

    Authorities (C:\CD Smith Brief\Authorities)

    Cases (C:\CD Smith Brief\Authorities\Cases)

    Statutes (C:\CD Smith Brief\Authorities\Statutes)

    Regulations (C:\CD Smith Brief\Authorities\Regulations)

    CourtRules (C:\CD Smith Brief\Authorities\Court Rules)

    Transcripts (C:\CD Smith Brief\Transcripts)

    Record (C:\CD Smith Brief\Record)

Put all of the reference materials in the appropriate folders. A staff person can retrieve cases and statutes from online or CD-ROM sources, print them to PDF, and save them to the appropriate folders.

For appellate briefs, scan the record to PDF (this way the images of the record on the final CD will have the numbering supplied by the trial court appellate clerk). After scanning the record, run the file through an OCR application such as OmniPagePro (version 11 will OCR PDF documents, maintaining the exact image replica while placing a searchable text file "behind" the image). OCR applications are available through software resellers, including many office supply stores. If the trial court provided an electronic record, this step may be skipped.

Creating the Links

Using Adobe Acrobat™ , a staff person now can open the brief and begin building the links. In an appellate brief, link the materials listed in the table of authorities to the source cited. The page numbers where the authority appears in the brief may be linked, to the citations in the brief. In the body of the brief, link citations to source materials.

To create links in the PDF document, click on the "Link" tool (looks like the links of a chain), drag a box around the citation (reference to record, reference to exhibit, and the like), choose "Invisible Box" (this need be done only on the first link; the program will remember this choice as long as the document remains open), and "Go to View" and then click on "Set Link."

When the sources are in separate folders, it helps to have Windows Explorer open to facilitate this process. For example, to set the link for a case citation, switch to Windows Explorer (Alt-Tab), double click on the folder (C:\CD Smith Brief\Cases), double click the appropriate case (it will open in Acrobat™ ), and click on the "Set Link" button. Continue through the brief, setting links. When creating or "drawing" the link box, hold down the Control key; this will tell Acrobat™ to select text and produces link boxes of uniform size.

In the Simple Brief, where all source materials have been inserted into the original document, the linking process is easier. Go to the first item to be linked; select the "Link" tool, drag a box around the citation or reference, select "Invisible Box" (remember, this need be done only on the first link; the program will remember this choice as long as the document remains open), and select "Go to View." Now, rather than using Windows Explorer to find the file, simply click on the appropriate bookmark (in the background, behind the current dialog box). The bookmarked page will appear. Click "Set Link." Once the link has been established, the dialog box will close, and the program will return to the point in the document where the link was just created. Continue working through the document, building links.

When all links have been created, consider removing the bookmarks or, better yet, create a bookmark to the first page of source materials and give it an appropriate name (for example, "Cases"). Now, "move"—that is, drag all the case bookmarks over one level to the right so that they are nested below the bookmark named "Cases." Do this for Transcripts, Affidavits, Exhibits, and the like. The nested bookmarks might look something like this:

    Title Page

    Introduction

    Undisputed Facts

    Summary of Argument

    Argument
        Summary Judgment Standard
        No Genuine Issues of Material Fact
        Defendant Entitled to Judgment as a Matter of Law

    Conclusion

    Appendices
        Cases Cited
        Transcripts
        Affidavits
        Other Exhibits

After all links have been made, another staff person should sit down at the computer and go through the brief to make sure that all links work properly. Alternatively, the staff person could check the function at his or her own computer directly from a test CD.

Conclusion

The advent of electronic filing has opened the door to submission of documents containing active links to all materials that are cited. A small project can be completed in less than an hour. More complex documents, with more reference materials, require more time. Much of the work of obtaining or producing electronic source materials, building the links, and transferring the finished product to CD-ROM, can be performed by staff. Lawyers can now provide courts with briefs that permit immediate review of cited materials, regardless of whether the citations are to legal authorities or exhibits. PDF documents with hidden text can be searched (image-only PDF documents cannot be searched). Providing courts with more information, in a format that facilitates review, should enhance the decision-making process. Producing eBriefs provides a tool for better advocacy, without incurring significant expense.

NOTES

1. A link is an electronic pointer to another source. Most people are familiar with links embedded in websites that take them to other pages within the site, or even to other websites, when they are clicked on. Linking, as used in this article, is the means to point to an exhibit or case law. When a reader of the e-filing clicks on the link, he or she is brought directly to the exhibit or case law that illustrates the point being made in the brief.

2. In this article, "Adobe Acrobat™" refers to the full Acrobat program and not the free Adobe Acrobat Reader. Adobe Acrobat™ can be purchased online from Adobe at www.adobe.com and through retail outlets.

3. A macro is a set of keystrokes and instructions recorded and saved under a short key code or macro name. When the key code is typed or the macro name is used, the program carries out the instructions of the macro. Users can create a macro to save time by replacing an often-used, sometimes lengthy, series of strokes with a shorter series of strokes.

4. Fonts tend to render better when using Distiller, and Distiller has more options for how graphic images will be converted to PDF.

5. These are electronic markers or place-holders that allow easy access to information.

6. This is often a frustrating process, making the price of transcript management software seem insignificant, not to mention the other benefits of such software.

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